Sunday, June 20, 2010
Wednesday, June 16, 2010
Mr. Gäfgen lured an 11 year old boy to his apartment and murdered him. He then demanded 1 million Euros ransom from the boys parents, telling them their son was still alive. When Gäfgen collected the ransom German police monitored him and arrested him. Gäfgen told the police the boy was alive. Believing the boys life to be in grave danger the German police threatened Gäfgen with grave suffering if he refused to disclose the location of the boy. As a result, Gäfgen confessed to kidnapping and killing the boy and he told the police where the boy was buried. The police found the body and other physical evidence.
During his trial the German court refused to admit Gäfgen's confession but it did allow the physical evidence found as a result of his confession - including an autopsy report on the victim's body. Later in the trial Gäfgen confessed again, and the court sentenced him to life in prison.
The police who threatened to use force were prosecuted and convicted in Germany.
In the ECHR, Gäfgen argued that the threat by German police to cause him grave suffering was a threat to use torture in violation of Article 3 of the European Convention of Human Rights. He also claimed that admitting the physical evidence obtained through the confession caused his trial to be unfair in violation of Article 6 of the European Convention.
The ECHR ruled that the perceived risk to the 11 year old boy's life did not justify the threat to cause suffering and that Germany had violated Article 3. The Court reiterated that the prohibition in Article 3 is non-derogable, and there can be no justification for the use of torture or cruel inhuman or degrading treatment - even to save the life of a child.
However, the ECHR ruled that the threats against Gäfgen did not amount to torture but instead constituted cruel, inhuman or degrading treatment. In making this determination, the Court considered factors such as the duration of the suffering - less than 20 minutes, the absence of long-lasting physical or psychological effects, and the degree of suffering imposed.
The ECHR ruled that because Gäfgen confessed during the trial, the introduction of evidence obtained through the coerced confession was not necessary to prove guilt. His trial, therefore, was deemed fair.
The ECHR press release can be found here and the full decision is here.
Sunday, June 6, 2010
In a Michigan speech this week Former President Bush stated "We Water-boarded Khallid Sheik Mohammad, I'd do it again to save lives." Human rights law experts agree that waterboarding is torture, and the United States has prosecuted waterboarding as torture. Has the President admitted to committing war crimes? If so, is there an obligation to prosecute? The Convention Against Torture, which the United States has signed and ratified, requires states to prosecute those who commit torture:
Article 7(1) The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
- See a report on Bush's statement here.
- And see this report on the assertion that torture saved lives, and
- This DOJ report on the effectiveness of torture, and this summary by Newsweek.
- This essay considers the argument that the torture program was effective.
- The International Red Cross has released reports such as this one (pdf) on the techniques used by US interrogators.
What does the US response to torture allegations tell us about human rights law?